B-53160, DECEMBER 2, 1946, 26 COMP. GEN. 373

B-53160: Dec 2, 1946

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SIX MONTHS' DEATH GRATUITY PAY - CADETS AT MILITARY ACADEMY CADETS AT THE MILITARY ACADEMY ARE TO BE REGARDED AS OFFICERS ON THE ACTIVE LIST OF THE REGULAR ARMY WITHIN THE MEANING OF THE SIX MONTHS' DEATH GRATUITY STATUTE OF DECEMBER 17. IS PAYABLE TO THE PERSON ENTITLED THERETO UNDER THE TERMS OF THE STATUTE. 1946: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21. YOU EXPRESS DOUBT AS TO WHETHER OR NOT CADETS OF THE UNITED STATES MILITARY ACADEMY AND THEIR BENEFICIARIES ARE WITHIN THE SCOPE OF THE STATUTORY PROVISIONS AUTHORIZING PAYMENT OF SIX MONTHS' DEATH GRATUITY AND. IN WHICH IT WAS HELD THAT MIDSHIPMEN AT THE NAVAL ACADEMY WERE OFFICERS ON THE ACTIVE LIST WITHIN THE MEANING OF A SIMILAR DEATH GRATUITY STATUTE FOR NAVAL PERSONNEL.

B-53160, DECEMBER 2, 1946, 26 COMP. GEN. 373

SIX MONTHS' DEATH GRATUITY PAY - CADETS AT MILITARY ACADEMY CADETS AT THE MILITARY ACADEMY ARE TO BE REGARDED AS OFFICERS ON THE ACTIVE LIST OF THE REGULAR ARMY WITHIN THE MEANING OF THE SIX MONTHS' DEATH GRATUITY STATUTE OF DECEMBER 17, 1919, AS AMENDED, SO THAT, UPON THE DEATH OF A CADET, THE GRATUITY, OTHERWISE PROPER, IS PAYABLE TO THE PERSON ENTITLED THERETO UNDER THE TERMS OF THE STATUTE.

COMPTROLLER GENERAL WARREN TO MAJOR E. M. SIMMONS, U.S. ARMY, DECEMBER 2, 1946:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21, 1945, SUBMITTING A VOUCHER COVERING A CLAIM FOR SIX MONTHS' DEATH GRATUITY MADE BY LIEUTENANT COLONEL RAYMOND MORRISON, U.S. ARMY, RETIRED, AS DESIGNATED BENEFICIARY OF HIS SON, THE LATE ARTHUR R. MORRISON, CADET, UNITED STATES MILITARY ACADEMY, WHO DIED ON MAY 24, 1945, AS A RESULT OF AN AVIATION TRAINING ACCIDENT AT ST. ELMO, NEW YORK. YOU EXPRESS DOUBT AS TO WHETHER OR NOT CADETS OF THE UNITED STATES MILITARY ACADEMY AND THEIR BENEFICIARIES ARE WITHIN THE SCOPE OF THE STATUTORY PROVISIONS AUTHORIZING PAYMENT OF SIX MONTHS' DEATH GRATUITY AND, ACCORDINGLY, YOU REQUEST A DECISION ON THE LEGALITY OF PAYING THE CLAIM HERE IN QUESTION. IN TRANSMITTING YOUR REQUEST TO THIS OFFICE BY FIRST INDORSEMENT OF OCTOBER 12, 1945, THE FISCAL DIRECTOR, ARMY SERVICE FORCES, REFERS PARTICULARLY TO DECISION OF JULY 17, 1908, 15 COMP. DEC. 39, IN WHICH IT WAS HELD THAT MIDSHIPMEN AT THE NAVAL ACADEMY WERE OFFICERS ON THE ACTIVE LIST WITHIN THE MEANING OF A SIMILAR DEATH GRATUITY STATUTE FOR NAVAL PERSONNEL.

PAYMENTS OF THE SIX MONTHS' DEATH GRATUITY IN CASES OF DEATH OF ARMY PERSONNEL ARE AUTHORIZED AND GOVERNED BY THE PROVISIONS OF THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED, 10 .S.C., SUPP. V, 903, AS FOLLOWS:

HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE CHIEF OF FINANCE OF THE ARMY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. THE SECRETARY OF WAR SHALL ESTABLISH REGULATIONS REQUIRING EACH OFFICER AND ENLISTED MAN HAVING NO WIFE OR CHILD TO DESIGNATE THE PROPER DEPENDENT RELATIVE TO WHOM THIS AMOUNT SHALL BE PAID IN CASE OF HIS DEATH. SAID AMOUNT SHALL BE PAID FROM FUNDS APPROPRIATED FOR THE PAY OF THE ARMY: PROVIDED, THAT NOTHING IN THIS SECTION SHALL BE CONSTRUED AS MAKING THE PROVISIONS THEREOF APPLICABLE TO OFFICERS OR ENLISTED MEN OF ANY FORCES OR TROOPS OF THE ARMY OF THE UNITED STATES OTHER THAN THOSE OF THE REGULAR ARMY, AND NOTHING IN THIS SECTION SHALL BE CONSTRUED TO APPLY IN COMMISSIONED GRADES TO ANY OFFICERS EXCEPT THOSE HOLDING PERMANENT APPOINTMENTS IN THE REGULAR ARMY: AND PROVIDED FURTHER, THAT NONE OF THE FUNDS APPROPRIATED FOR THE PURPOSES OF THIS SECTION SHALL BE USED FOR THE PAY OF SUCH SIX MONTHS' PAY TO ANY MARRIED CHILD OR UNMARRIED CHILD OVER TWENTY-ONE YEARS OF AGE OF A DECEASED OFFICER OR ENLISTED MAN WHO IS NOT ACTUALLY A DEPENDENT OF SUCH DECEASED OFFICER OR ENLISTED MAN: AND PROVIDED FURTHER, THAT IN THE EVENT OF THE DEATH OF ANY BENEFICIARY BEFORE PAYMENT TO AND COLLECTION BY SUCH BENEFICIARY OF THE AMOUNT AUTHORIZED HEREIN, SUCH GRATUITY SHALL BE PAID TO THE NEXT LIVING BENFICIARY IN THE ORDER OF SUCCESSION ABOVE STATED: AND PROVIDED FURTHER, THAT IF THERE BE NO WIDOW, CHILD, OR PREVIOUSLY DESIGNATED DEPENDENT RELATIVE, THE SECRETARY OF WAR SHALL CAUSE THE AMOUNT HEREIN PROVIDED TO BE PAID TO ANY GRANDCHILD, PARENT, BROTHER OR SISTER, OR GRANDPARENT SHOWN TO HAVE BEEN DEPENDENT UPON SUCH OFFICER OR ENLISTED MAN PRIOR TO HIS DEATH, AND THE DETERMINATION OF SUCH FACT BY THE SECRETARY OF WAR SHALL BE FINAL AND CONCLUSIVE UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT: AND PROVIDED FURTHER, THAT THE LAST FOREGOING PROVISO SHALL BE EFFECTIVE AS OF AUGUST 27, 1940.

THE ACT OF DECEMBER 10, 1941, 55 STAT. 796 (EFFECTIVE AUGUST 27, 1940), EXTENDED THE ABOVE PROVISIONS OF THE ACT OF DECEMBER 17, 1919, AS AMENDED, TO ALL "OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES, OTHER THAN THE OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, IF CALLED OR ORDERED INTO THE ACTIVE MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED MILITARY SERVICE IN EXCESS OF THIRTY DAYS.' SEE 10 U.S.C., SUPP. V, 456.

AS YOU HAVE POINTED OUT, WAR DEPARTMENT CIRCULAR NO. 230, DATED JULY 30, 1945, RESCINDED PARAGRAPH 3B OF ARMY REGULATIONS 35-1540, DATED APRIL 19, 1945, WHICH SAID:

THE PROVISIONS OF THE ACT OF 17 DECEMBER 1919 (41 STAT. 367) AUTHORIZING PAYMENT OF SIX MONTHS' GRATUITY PAY DO NOT APPLY TO CADETS AT THE UNITED STATES MILITARY ACADEMY.

STATEMENTS SUBSTANTIALLY IDENTICAL TO THAT QUOTED ABOVE APPEARED IN ARMY REGULATIONS 35-1540, DATED DECEMBER 15, 1924, AND SUBSEQUENT REVISIONS OF THE SAID REGULATIONS DATED MARCH 30, 1929, MARCH 15, 1937, AND DECEMBER 19, 1942, AND WHILE NONE OF THE REVISIONS OF THE REGULATIONS, INCLUDING THE ONE DATED APRIL 19, 1945, CITED ANY STATUTE, DECISION OR OPINION AS A BASIS FOR SUCH STATEMENTS, IT IS UNDERSTOOD THAT THEY HAD THEIR INCEPTION IN AN UNPUBLISHED OPINION GIVEN BY THE JUDGE ADVOCATE GENERAL OF THE ARMY OCTOBER 24, 1923.

IT IS WELL SETTLED THAT A UNIFORM CONSTRUCTION GIVEN TO A STATUTE BY THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT CHARGED WITH EXECUTING IT, AND ACTED UPON FOR A LONG TERM OF YEARS, THOUGH NOT CONCLUSIVE, IS GIVEN GREAT WEIGHT BY THE COURTS. ALSO, IT IS WELL SETTLED THAT A REGULATION, ISSUED BY A DEPARTMENT OR AGENCY OF THE GOVERNMENT, CANNOT BE EFFECTIVE TO DEPRIVE A PERSON OF A RIGHT GIVEN TO HIM BY STATUTE.

WHATEVER JUSTIFICATION THERE MAY HAVE BEEN FOR THE PREVIOUS WAR DEPARTMENT VIEW THAT THE ACT OF DECEMBER 17, 1919, AS AMENDED, DID NOT APPLY TO CADETS AT THE MILITARY ACADEMY, THE SUBPARAGRAPH IN THE ARMY REGULATIONS WHICH REFLECTED THAT VIEW WAS RESCINDED IN JULY, 1945, APPARENTLY ON THE BASIS THAT IT WAS ERRONEOUS, CONSIDERING THE FACT THAT THE SIMILAR STATUTORY PROVISIONS FOR PAYMENT OF SIX MONTHS' DEATH GRATUITY IN CASES OF DEATH OF NAVY PERSONNEL HAVE BEEN REGARDED AS APPLICABLE TO MIDSHIPMEN AT THE UNITED STATES NAVAL ACADEMY EVER SINCE THE DECISION OF JULY 17, 1908, 15 COMP. DEC. 39, CITED BY THE FISCAL DIRECTOR, WAS RENDERED TO THE SECRETARY OF THE NAVY. IT WAS HELD IN THAT DECISION (QUOTING FROM THE SYLLABUS) THAT:

MIDSHIPMEN AT THE NAVAL ACADEMY ARE OFFICERS ON THE ACTIVE LIST OF THE NAVY WITHIN THE MEANING OF THE PROVISO IN THE ACT OF MAY 13, 1908, WHICH ALLOWS A GRATUITY OF SIX MONTHS' PAY TO BE PAID TO THE WIDOW OR OTHER DESIGNATED BENEFICIARY UPON THE DEATH OF AN OFFICER ON THE ACTIVE LIST OF THE NAVY.

AN EXAMINATION OF THE STATUTORY PROVISIONS FOR PAYMENT OF THE GRATUITY WHICH WERE CONSTRUED BY THE ASSISTANT COMPTROLLER OF THE TREASURY IN THE SAID DECISION OF JULY 17, 1908, DISCLOSES THAT, FOR PURPOSES OF COMPARISON IN CONNECTION WITH THE PRESENT QUESTION, SUCH PROVISIONS DO NOT DIFFER MATERIALLY FROM THE CURRENT STATUTORY PROVISIONS PERTAINING TO THE ARMY, AS QUOTED ABOVE, OR FROM THE PROVISIONS OF THE ACT OF MAY 11, 1908, 35 STAT. 108, THE ORIGINAL STATUTE AUTHORIZING PAYMENTS OF SIX MONTHS' DEATH GRATUITY IN CASES OF DEATH OF ARMY PERSONNEL, AND NO STATUTE OR DECISION HAS BEEN FOUND WHICH WOULD AFFORD ANY SUBSTANTIAL BASIS FOR HOLDING THAT THERE IS A DISTINCTION BETWEEN MIDSHIPMEN AT THE NAVAL ACADEMY AND CADETS AT THE MILITARY ACADEMY FOR THE PURPOSES OF THE STATUTES PERTAINING TO PAYMENTS OF THE SIX MONTHS' DEATH GRATUITY. IN SUCH CONNECTION, IT IS NOTED THAT THE COURT OF CLAIMS, IN A DECISION RENDERED ON APRIL 2, 1906, IN THE CASE OF WELLER V. UNITED STATES, 41 C.1CLS. 324, STATED (QUOTING FROM PAGE 342):

WE KNOW OF NO REASON WHY A MIDSHIPMAN AT THE NAVAL ACADEMY AT THE PRESENT TIME SHOULD HAVE PRIVILEGES AND RIGHTS DENIED TO A CADET AT THE MILITARY ACADEMY, AND WE DO NOT BELIEVE THE LAW, PROPERLY CONSTRUED, MAKES ANY SUCH DISTINCTION. NEITHER OF THEM HOLDS EITHER A COMMISSION OR A WARRANT. BOTH ARE APPOINTED BY THE PRESIDENT; THOSE APPOINTED AT THE MILITARY ACADEMY ARE CALLED CADETS AND THOSE AT THE NAVAL ACADEMY ARE NOW CALLED MIDSHIPMEN.

THERE MAY HAVE BEEN A TIME IN THE HISTORY OF THE GOVERNMENT AND THE NAVAL ACADEMY WHEN A MIDSHIPMAN SHOULD HAVE BEEN REGARDED AS AN OFFICER IN THE NAVY WITHIN THE MEANING OF SECTION 1229, AND WHEN THE STUDENTS AT THE NAVAL ACADEMY WERE ON A DIFFERENT FOOTING IN THAT REGARD THAN THE STUDENTS AT THE MILITARY ACADEMY, BUT THE REASON FOR SO HOLDING NO LONGER EXISTS. THE ACT OF MARCH 3, 1883 (SUPRA), CHANGED THE TITLE OF MIDSHIPMEN IN THE NAVY TO ENSIGN AND THE ACT OF MARCH 3, 1899, LEAVES MIDSHIPMEN OUT OF THE LIST OF LINE OFFICERS OF THE NAVY, SO THAT NOW THERE ARE NO MIDSHIPMEN EXCEPT THOSE APPOINTED TO THE NAVAL ACADEMY AND UNDERGOING INSTRUCTION THEREIN OR IN CONNECTION THEREWITH.

THE STATE OF THE LAW RESPECTING THE STATUS OF CADETS AT THE MILITARY ACADEMY AND MIDSHIPMEN AT THE NAVAL ACADEMY IS SUMMARIZED IN VOLUME 36 OF AMERICAN JURISPRUDENCE ( TOPIC: MILITARY, SECTION 51, PAGE 217) AS FOLLOWS:

* * * THE LAW IS NOT WELL SETTLED AS TO WHETHER STUDENTS AT THE MILITARY AND NAVAL ACADEMY ARE OFFICERS. FOR THE PURPOSE OF DETERMINING LONGEVITY PAY, THEY WERE FORMERLY SO CLASSED; AND UNDER FORMER STATUTES, CADET ENGINEER GRADUATES WERE SO CALLED, IN EFFECT, FOR CERTAIN PURPOSES, BUT WITHIN THE MEANING OF A STATUTE PROHIBITING DISMISSALS FROM SERVICE IN TIME OF PEACE, EXCEPT AFTER TRIAL AND CONVICTION BY COURT-MARTIAL, THEY ARE NOT CONSIDERED OFFICERS. * * *

THE PRINCIPAL COURT CASES IN WHICH THE STATUS OF CADETS AND MIDSHIPMEN HAS BEEN CONSIDERED ARE: UNITED STATES V. MORTON (1884), 112 U.S. 1; UNITED STATES V. BAKER (1888), 125 U.S. 646; UNITED STATES V. COOK (1888), 128 U.S. 254; UNITED STATES V. WATSON (1889), 130 U.S. 80; HARTIGAN V. UNITED STATES (1905), 196 U.S. 169; UNITED STATES V. NOCE (1925), 268 U.S. 613; BABBITT V. UNITED STATES (1880), 16 C.1CLS. 202; JASPER V. UNITED STATES (1903), 38 C.1CLS. 202; JASPER V. UNITED STATES (1904), 40 C.1CLS. 76; WELLER V. UNITED STATES (1906), 41 C.1CLS. 324; MOSER V. UNITED STATES (1907), 42 C.1CLS. 86; JASPER V. UNITED STATES ( APRIL 20, 1908), 43 C.1CLS. 368; HOEPPEL V. UNITED STATES ( D.C. APP.--- 1936), 85 F.2D 237. SEE, ALSO, CRENSHAW V. UNITED STATES (1890), 134 U.S. 99; UNITED STATES V. PERKINS (1886), 116 U.S. 483; UNITED STATES V. REDGRAVE (1886), 116 U.S. 474; GRAMBS V. UNITED STATES (1888), 23 C.1CLS. 420; CRYGIER V. UNITED STATES (1890), 25 C.1CLS. 268; POTTER V. UNITED STATES (1899), 34 C.1CLS. 13; 15 OP. ATTY. GEN. 634; 25 OP. ATTY. GEN. 579; 5 COMP. GEN. 153; 12 ID. 73; 21 ID. 392; 25 ID. 758.

IN THE MORTON AND WATSON CASES, THE SUPREME COURT OF THE UNITED STATES HELD THAT THE TIME OF SERVICE AS A CADET IN THE MILITARY ACADEMY IS TO BE REGARDED AS "ACTUAL TIME OF SERVICE IN THE RMY" IN COMPUTING THE SERVICE OF AN OFFICER FOR LONGEVITY PAY PURPOSES.

IN THE BAKER AND COOK CASES, THE COURT HELD THAT MIDSHIPMEN ARE OFFICERS OF THE NAVY AND THAT SERVICE AS A MIDSHIPMAN SHOULD BE INCLUDED IN COMPUTING THE LENGTH OF SERVICE OF A NAVY OFFICER FOR LONGEVITY PAY PURPOSES.

WITH RESPECT TO THE COMPUTATION OF LONGEVITY PAY, THE EFFECT OF THE SUPREME COURT'S DECISIONS IN THE MORTON, WATSON, BAKER AND COOK CASES WAS NULLIFIED BY THE ACT OF AUGUST 24, 1912, 37 STAT. 594, WHICH PROHIBITED PERSONS THEREAFTER APPOINTED TO THE MILITARY ACADEMY OR TO THE NAVAL ACADEMY FROM COUNTING SERVICE AS CADET OR MIDSHIPMAN IN COMPUTING FOR ANY PURPOSE THEIR LENGTH OF SERVICE AS OFFICERS OF THE ARMY, AND BY THE ACT OF MARCH 4, 1913, 37 STAT. 891, WHICH CONTAINED A SIMILAR PROHIBITION RELATING TO OFFICERS OF THE NAVY AND MARINE CORPS.

IN THE NOCE CASE, THE COURT HELD THAT AN ARMY OFFICER WAS NOT ENTITLED TO COUNT HIS SERVICE AS A CADET AT THE MILITARY ACADEMY IN COMPUTING HIS LENGTH OF SERVICE FOR LONGEVITY PAY PURPOSES IN VIEW OF THE PROVISIONS OF THE ACT OF AUGUST 24, 1912, SUPRA. IN THAT CASE THE COURT REJECTED THE CONTENTION THAT THE PROHIBITORY PROVISIONS IN THE ACTS OF AUGUST 24, 1912, AND MARCH 4, 1913, WERE REPEALED BY A PROVISO IN SECTION 11 OF THE ACT OF MAY 18, 1920, 41 STAT. 601, 603,"THAT HEREAFTER LONGEVITY PAY FOR OFFICERS IN THE ARMY, NAVY, MARINE CORPS, COAST GUARD, PUBLIC HEALTH SERVICE, AND COAST AND GEODETIC SURVEY SHALL BE BASED ON THE TOTAL OF ALL SERVICE IN ANY OR ALL OF SAID VICES.'

IN THE HARTIGAN CASE THE SUPREME COURT HELD THAT A CADET AT THE MILITARY ACADEMY WAS NOT AN OFFICER WITHIN THE MEANING OF SECTION 1229 OF THE REVISED STATUTES AND THE 99TH ARTICLE OF WAR, PROVIDING THAT IN TIME OF PEACE NO OFFICER SHALL BE DISMISSED FROM THE SERVICE EXCEPT IN PURSUANCE OF THE SENTENCE OF A COURT MARTIAL. THE COURT, HOWEVER, PREMISED ITS HOLDING UPON THE EXPRESS PROVISION IN SECTION 1342 OF THE REVISED STATUTES THAT THE WORD "OFFICER" AS USED IN THE ARTICLES OF WAR "SHALL BE UNDERSTOOD TO DESIGNATE COMMISSIONED OFFICERS" AND STATED:

IT IS ONLY A COMMISSIONED OFFICER, THEREFORE, WHO IS ENTITLED TO THE PROTECTION OF A GENERAL COURT-MARTIAL, AND A CADET IS NOT A COMMISSIONED OFFICER. * * * * * **

* * * THAT A CADET IS AN OFFICER IS DEDUCED FROM THE FACT THAT HE IS APPOINTED BY THE PRESIDENT, TAKES AN OATH TO OBEY HIS "SUPERIOR OFFICERS," AND RECEIVES PAY. BUT, AS WE HAVE ALREADY INTIMATED, IT IS NOT NECESSARY TO DISPUTE THAT A CADET IS AN OFFICER. WHETHER HE IS OR NOT IS NOT THE QUESTION IN THE CASE. THE QUESTION IS, WHETHER SECTION 1229 APPLIES TO HIM * * *.

THE CASES CITED BY APPELLANT DO NOT CONFLICT WITH THESE VIEWS. UNITED STATES V. MORTON, 112 U.S. 1, DECIDES ONLY THAT THE TIME OF SERVICE AS A CADET WAS ACTUAL TIME OF SERVICE IN THE ARMY WITHIN THE MEANING OF THE STATUTES GIVING LONGEVITY PAY TO OFFICERS. IN UNITED STATES V. BAKER, 125 U.S. 646, AND UNITED STATES V. COOK, 128 U.S. 254, STATUTES GIVING LONGEVITY PAY TO OFFICERS IN THE NAVY WERE CONSTRUED, AND IT WAS HELD THAT A CADET MIDSHIPMAN WAS AN OFFICER OF THE NAVY. THE REASONING OF THE COURT, HOWEVER, HAS NO APPLICATION TO THE CONSTRUCTION OF SECTIONS 1229 AND 1342.

IN THE WELLER CASE THE CLAIMANT HAD BEEN DISMISSED FROM THE NAVAL ACADEMY BY THE SECRETARY OF THE NAVY "FOR THE CONTINUED VIOLATION OF THE REGULATIONS REGARDING THE USE OF TOBACCO" AND WAS SEEKING MIDSHIPMAN'S PAY FOR A PERIOD FOLLOWING THE DATE OF HIS DISMISSAL ON THE GROUND THAT HIS DISMISSAL WAS ILLEGAL BECAUSE OF THE STATUTORY PROHIBITION AGAINST DISMISSAL OF NAVAL OFFICERS IN TIME OF PEACE EXCEPT IN PURSUANCE OF THE SENTENCE OF A GENERAL COURT MARTIAL. THE COURT OF CLAIMS IN DECIDING AGAINST THE CLAIMANT, FOLLOWED THE REASONING OF THE SUPREME COURT IN THE HARTIGAN CASE AND, AS NOTED ABOVE, SPECIFICALLY STATED THAT IT KNEW OF NO REASON WHY A MIDSHIPMAN AT THE NAVAL ACADEMY SHOULD HAVE RIGHTS AND PRIVILEGES DENIED TO A CADET AT THE MILITARY ACADEMY.

IN THE BABBITT CASE THE COURT OF CLAIMS CONCLUDED THAT SERVICE AS A CADET AT THE MILITARY ACADEMY SHOULD NOT BE COUNTED IN COMPUTING THE LONGEVITY PAY OF AN OFFICER, BUT THE CASE WAS DECIDED BEFORE THE CASE OF UNITED STATES V. MORTON, SUPRA, IN WHICH THE SUPREME COURT OF THE UNITED STATES TOOK THE OPPOSITE VIEW. THE BABBITT CASE IS MENTIONED PRINCIPALLY BECAUSE OF THE EXHAUSTIVE TREATMENT GIVEN THEREIN BY THE COURT OF CLAIMS TO THE STATUS OF CADETS AND TO THE HISTORY OF LEGISLATION CONCERNING THEM AND BECAUSE OF THE COURT'S CONCLUSIONS THAT A CADET IS NEITHER A COMMISSIONED OFFICER, A NONCOMMISSIONED OFFICER NOR AN ENLISTED MAN BUT AN "INFERIOR OFFICER" WHO, FOR PURPOSES OF INSTRUCTION, MAY BE REQUIRED TO SERVE AS AN OFFICER, A NONCOMMISSIONED OFFICER, OR A PRIVATE.

IN THE CASE OF JASPER V. UNITED STATES, 38 C.1CLS. 202, THE COURT OF CLAIMS HELD THAT AN OFFICER WHOSE ONLY SERVICE DURING THE CIVIL WAR WAS SERVICE AS A MIDSHIPMAN AT THE NAVAL ACADEMY WAS NOT ,AN OFFICER OF THE NAVY * * * WHO HAS SERVED DURING THE CIVIL WAR" WITHIN THE MEANING OF SECTION 11 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007, AUTHORIZING SUCH OFFICERS TO BE RETIRED WITH THE RANK AND PAY OF THE NEXT HIGHER GRADE. HOWEVER, UPON A HEARING ON JASPER'S MOTION FOR A NEW TRIAL (40 C.1CLS. 76) THE COURT STATED:

WHEN THIS CASE WAS DECIDED ADVERSELY TO THE CLAIMANT (38 C.1CLS. R., 202) THE COURT OVERLOOKED THE FACT THAT CADET MIDSHIPMEN AT THE NAVAL ACADEMY WERE LIABLE TO BE CALLED INTO SERVICE DURING THE CIVIL WAR AND WERE ACTUALLY CALLED INTO SERVICE; AND AMONG THEM, IT IS NOW UNDERSTOOD, CLASSMATES OF THE CLAIMANT WERE SO CALLED. THE COURT IS THEREFORE SATISFIED THAT THERE WAS ERROR IN ITS CONCLUSION WHICH WAS THAT THE CLAIMANT WAS NOT ENTITLED TO THE BENEFITS OF THE ACT 3D MARCH, 1899 (30 STAT. L., P. 1008 SEC. 11), AND THE CLAIMANT'S MOTION FOR A NEW TRIAL MUST BE ALLOWED.

IT WAS FINALLY DECIDED (43 C.1CLS. 368) THAT JASPER WAS NOT ENTITLED TO ADVANCEMENT UPON RETIREMENT IN VIEW OF THE PROVISIONS OF THE ACT OF JUNE 29, 1906, 34 STAT. 554, IN PERTINENT PART, AS FOLLOWS:

THAT ANY OFFICER OF THE NAVY NOT ABOVE THE GRADE OF CAPTAIN WHO SERVED WITH CREDIT AS AN OFFICER OR AS AN ENLISTED MAN * * * DURING THE CIVIL WAR * * * OTHERWISE THAN AS A CADET * * * MAY * * * BE PLACED ON THE RETIRED LIST OF THE NAVY WITH THE RANK AND RETIRED PAY OF ONE GRADE ABOVE THAT ACTUALLY HELD BY HIM AT THE TIME OF RETIREMENT. * * * (ITALICS SUPPLIED.)

THE MOSER CASE, ALSO, INVOLVED A NAVAL OFFICER WHO WAS CLAIMING ADVANCEMENT UPON RETIREMENT ON THE SAME BASIS THAT JASPER WAS CLAIMING SUCH ADVANCEMENT, AND WHILE JUDGMENT WAS RENDERED FOR THE CLAIMANT, MOSER, THE CASE WOULD HAVE BEEN DECIDED AGAINST MOSER, ACCORDING TO STATEMENTS MADE BY THE COURT IN THE JASPER CASE (43 C.1CLS. 368), IF THE ACT OF JUNE 29, 1906, HAS BEEN BROUGHT TO THE COURT'S ATTENTION.

IT WILL BE NOTED THAT, EXCEPTING THE NOCE CASE, ALL OF THE CASES DISCUSSED ABOVE WERE DECIDED PRIOR TO THE ASSISTANT COMPTROLLER'S DECISION OF JULY 17, 1908, REGARDING MIDSHIPMEN, AND THAT SUCH DECISION IS NOT INCONSISTENT WITH THE HOLDINGS AND THE VIEWS EXPRESSED BY THE COURTS IN SUCH PRIOR CASES. WHILE THE NOCE CASE HELD THAT THE ACT OF MAY 18, 1920, DID NOT REPEAL THE STATUTORY PROHIBITIONS AGAINST COUNTING CADET AND MIDSHIPMAN SERVICE FOR LONGEVITY PAY PURPOSES, THERE IS NOTHING IN THAT CASE, OR IN THE PROHIBITORY STATUTES CONSTRUED THEREIN, WHICH CANNOT BE RECONCILED WITH THE HOLDING THAT MIDSHIPMEN ARE OFFICERS WITHIN THE MEANING OF THE STATUTORY PROVISIONS FOR PAYMENT OF THE 6 MONTHS' DEATH GRATUITY.

IN THE CASE OF HOEPPEL V. UNITED STATES, SUPRA, DECIDED IN 1936 BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, IT WAS HELD THAT A CADET AT THE MILITARY ACADEMY IS THE HOLDER OF "AN APPOINTIVE OFFICE UNDER THE GOVERNMENT OF THE UNITED STATES" WITHIN THE MEANING OF A STATUTE WHICH PENALIZES SOLICITING OR RECEIVING MONEY FOR SUPPORT OR USE OF INFLUENCE IN OBTAINING SUCH AN OFFICE.

IN THE HOEPPEL CASE, WHILE THE COURT STATED THAT "A MEMBER OF THE CADET CORPS IS AN OFFICER OF THE UNITED STATES," IT ALSO STATED THAT "NO CLAIM IS MADE THAT A CADET IS AN OFFICER OF THE ARMY.' IN THIS CONNECTION IT IS IMPORTANT TO NOTE THAT SECTION 2 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED, 10 U.S.C. 4, ENTITLED " COMPOSITION OF THE REGULAR ARMY" PROVIDES THAT THE REGULAR ARMY OF THE UNITED STATES SHALL CONSIST, INTER ALIA," OF * * * THE PROFESSORS AND CADETS OF THE UNITED STATES MILITARY ACADEMY.' ALSO, THAT CADETS ARE APPOINTED BY THE PRESIDENT (10 U.S.C. 1091); THAT THEY TAKE AN OATH TO OBEY THE LEGAL ORDERS OF THEIR SUPERIOR OFFICERS AND THE RULES AND ARTICLES GOVERNING THE ARMIES OF THE UNITED STATES (10 U.S.C. 1099); THAT THEY ENGAGE TO SERVE FOR EIGHT YEARS UNLESS SOONER DISCHARGED (10 U.S.C. 1101); THAT THEY ARE SUBJECT AT ALL TIMES TO DO DUTY IN SUCH PLACES AND ON SUCH SERVICE AS THE PRESIDENT MAY DIRECT (10 U.S.C. 1102); THAT THEY ARE ORGANIZED INTO COMPANIES EACH OF WHICH IS COMMANDED BY AN OFFICER OF THE ARMY (10 U.S.C. 1105); THAT THEIR PAY AND ALLOWANCES ARE FIXED BY STATUTE (37 U.S.C., SUPP. V, 117) AND PAID FROM AN APPROPRIATION UNDER THE MILITARY ESTABLISHMENT ( MILITARY APPROPRIATION ACT, 1947, PUBLIC LAW 515, APPROVED JULY 16, 1946, 60 STAT. 555); THAT "CADET" IS LISTED IN THE ARMY REGULATIONS AS A GRADE OF RANK IN THE ARMY OF THE UNITED STATES BETWEEN "WARRANT OFFICER (JUNIOR GRADE) OR FLIGHT OFFICER" AND "AVIATION CADET" ( AR 600-15); AND THAT SERVICE AS A CADET OR AS MIDSHIPMAN ON OR AFTER DECEMBER 7, 1941, AND BEFORE TERMINATION OF HOSTILITIES INCIDENT TO WORLD WAR II, IS CONSIDERED ACTIVE MILITARY OR NAVAL SERVICE IN WORLD WAR II FOR THE PURPOSES OF LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION (38 U.S.C., SUPP. V, 730).

IF THE PROVISIONS OF THE SIX MONTHS' DEATH GRATUITY STATUTE WERE INTENDED TO APPLY ONLY TO COMMISSIONED OFFICERS AND TO ENLISTED MEN, THEN THERE WAS NO AUTHORITY FOR CONSIDERING THAT SUCH PROVISIONS WERE APPLICABLE TO WARRANT OFFICERS OF THE ARMY PRIOR TO AUGUST 27, 1940, THE EFFECTIVE DATE OF THE ACT OF DECEMBER 10, 1941, SUPRA, ENTITLED "AN ACT TO EXTEND THE SIX MONTHS' DEATH GRATUITY BENEFITS, NOW PAID ONLY TO DEPENDENTS OF OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY, TO DEPENDENTS OF ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY OF THE UNITED STATES WHO DIE IN LINE OF DUTY WHILE IN ACTIVE MILITARY SERVICE OF THE UNITED STATES," IT HAVING BEEN HELD, GENERALLY, THAT WHILE WARRANT OFFICERS ARE OFFICERS, THEY ARE NOT COMMISSIONED OFFICERS. SEE, FOR EXAMPLE, 25 COMP. DEC. 756; 6 COMP. GEN. 433; 17 COMP. GEN. 232. HOWEVER, IT APPEARS THAT FOR MANY YEARS PRIOR TO THE SAID ACT OF DECEMBER 10, 1941, THE PROVISIONS OF THE 6 MONTHS' DEATH GRATUITY STATUTES HAD BEEN CONSIDERED TO BE APPLICABLE TO WARRANT OFFICERS OF THE ARMY AND OF THE OTHER ARMED SERVICES. SEE PARAGRAPH 2A, AR 35-1540, DATED DECEMBER 15, 1924, AND SUBSEQUENT REVISIONS OF AR 35-1540; 27 COMP. DEC. 883; CF. 6 COMP. GEN. 407; ID. 745.

IN THE CASE OF UNITED STATES V. HENDEE, 124 U.S. 309, HOLDING THAT A PAYMASTER'S CLERK IN THE NAVY IS AN OFFICER OF THE NAVY WITHIN THE MEANING OF THE PROVISION IN THE ACT OF MARCH 3, 1883, 22 STAT. 473, RESPECTING THE LONGEVITY OF OFFICERS AND ENLISTED MEN IN THE ARMY AND NAVY, THE SUPREME COURT OF THE UNITED STATES STATED:

WE HAVE JUST DECIDED, IN THE CASE OF UNITED STATES V. MOUAT, ANTE, 303, THAT A PAYMASTER'S CLERK IS NOT, IN THE CONSTITUTIONAL SENSE OF THE WORD, AN OFFICER OF THE UNITED STATES; BUT WE ADDED ALSO THAT CONGRESS MAY HAVE USED THE WORD "OFFICER" IN A LESS STRICT SENSE IN SOME OTHER CONNECTIONS, AND IN THE PASSAGE OF CERTAIN STATUTES MIGHT HAVE INTENDED A MORE POPULAR SIGNIFICATION TO BE GIVEN TO THAT TERM. AND IN REGARD TO THE ACT OF 1883, WE THINK THAT ITS PROPER CONSTRUCTION REQUIRES THAT THE OFFICER, WHEN SUBSEQUENTLY COMING TO COMPUTE WHAT INCREASE SHALL BE MADE TO HIS STATUTORY SALARY BY REASON OF HIS PREVIOUS SERVICE, HAS A RIGHT TO COUNT OTHER SERVICE THAN THAT RENDERED IN THE CHARACTER OF AN OFFICER, AS DEFINED BY THE CONSTITUTION OF THE UNITED STATES. ITS LANGUAGE IS, THAT "ALL OFFICERS OF THE NAVY SHALL BE CREDITED WITH THE ACTUAL TIME THEY MAY HAVE SERVED AS OFFICERS OR ENLISTED MEN.'

THE CLAIMANT HERE IS AN OFFICER OF THE NAVY, AND IS, THEREFORE, TO BE CREDITED WITH THE ACTUAL TIME THAT HE SERVED AS AN OFFICER OR ENLISTED MAN IN THE REGULAR OR VOLUNTEER ARMY OR NAVY, OR BOTH. WE THINK THE WORDS "OFFICERS OR ENLISTED MEN IN THE REGULAR OR VOLUNTEER ARMY OR NAVY, OR BOTH," WAS INTENDED TO INCLUDE ALL MEN REGULARLY IN SERVICE IN THE ARMY OR NAVY, AND THAT THE EXPRESSION "OFFICERS OR ENLISTED MEN" IS NOT TO BE CONSTRUED DISTRIBUTIVELY AS REQUIRING THAT A PERSON SHOULD BE AN ENLISTED MAN, OR AN OFFICER NOMINATED AND APPOINTED BY THE PRESIDENT, OR BY THE HEAD OF A DEPARTMENT, BUT THAT IT WAS MEANT TO INCLUDE ALL MEN IN SERVICE, EITHER BY ENLISTMENT OR REGULAR APPOINTMENT IN THE ARMY OR NAVY. WE ARE OF OPINION THAT THE WORD "OFFICER" IS USED IN THAT STATUTE IN THE MORE GENERAL SENSE WHICH WOULD INCLUDE A PAYMASTER'S CLERK; THAT THIS WAS THE INTENTION OF CONGRESS IN ITS ENACTMENT, AND THAT THE COLLOCATION OF THE WORDS MEANS THIS, ESPECIALLY WHEN IT IS ADDED THAT THEY "SHALL RECEIVE ALL THE BENEFITS OF SUCH ACTUAL SERVICE IN ALL RESPECTS AND IN THE SAME MANNER AS IF SAID SERVICE HAD BEEN CONTINUOUS AND IN THE REGULAR NAVY.'

SINCE THE ENACTMENT OF THE ACT OF DECEMBER 10, 1941, SUPRA, AND THE ENACTMENT OF A SIMILAR STATUTE (ACT OF MARCH 17, 1941, 55 STAT. 43), FOR THE RESERVES OF THE NAVY AND MARINE CORPS, THIS OFFICE HAS HELD THE PROVISIONS OF THE 6 MONTHS' DEATH GRATUITY STATUTES TO BE APPLICABLE TO NAVAL RESERVE AVIATION CADETS, MERCHANT MARINE RESERVE CADETS, AND NAVAL RESERVE MIDSHIPMEN (21 COMP. GEN. 121); RESERVE NURSES OF THE ARMY NURSE CORPS (22 COMP. GEN. 101); MEMBERS OF THE WOMEN'S ARMY CORPS (23 COMP. GEN. 216); MEMBERS OF THE WOMEN'S RESERVES OF THE NAVY, MARINE CORPS AND COAST GUARD (24 COMP. GEN. 623); AND FLIGHT OFFICERS, ARMY AIR FORCES (B- 34086, MAY 22, 1943).

IN HOLDING THAT THE 6 MONTHS' DEATH GRATUITY STATUTE OF MAY 13, 1908, APPLIED TO MIDSHIPMEN AT THE NAVAL ACADEMY (15 COMP. DEC. 39, SUPRA), THE ASSISTANT COMPTROLLER OF THE TREASURY WAS CONSTRUING THE ACT OF MAY 13, 1908, 2 MONTHS AFTER ITS ENACTMENT. THAT ACT WAS CONSIDERED AND AMENDED BY THE CONGRESS ON FOUR OCCASIONS (ACT, AUGUST 22, 1912, 37 STAT. 329; ACT, MARCH 3, 1915, 38 STAT. 938; ACT, AUGUST 29, 1916, 39 STAT. 572; ACT, OCTOBER 6, 1917, 40 STAT. 392) BETWEEN THE DATE OF THE ASSISTANT COMPTROLLER'S DECISION, JULY 17, 1908, AND OCTOBER 6, 1917, THE DATE OF APPROVAL OF AN ACT AMENDING THE WAR RISK INSURANCE ACT WHICH, IN EFFECT, REPEALED ALL STATUTORY PROVISIONS AUTHORIZING PAYMENTS OF 6 MONTHS' DEATH GRATUITY, NOT ONLY IN CASES OF DEATH OF PERSONNEL OF THE NAVY AND MARINE CORPS BUT IN ALL CASES OF ARMY PERSONNEL AS WELL (SECTION 312, ACT, OCTOBER 6, 1917, 40 STAT. 408). THERE WAS NO REVIVAL OF STATUTORY AUTHORITY FOR SUCH PAYMENTS IN CASES INVOLVING NAVY AND MARINE CORPS PERSONNEL UNTIL ENACTMENT OF THE ACT OF JUNE 4, 1920, 41 STAT. 824 (SEE 27 COMP. DEC. 137), AND IN CASES INVOLVING ARMY PERSONNEL UNTIL ENACTMENT OF THE ACT OF DECEMBER 17, 1919. THE NAVY ACT OF JUNE 4, 1920, VIRTUALLY IDENTICAL IN ALL RESPECTS HERE PERTINENT WITH ITS PREDECESSOR ACT OF MAY 13, 1908, WAS AMENDED BY THE ACT OF MAY 22, 1928, 45 STAT. 710, AND BY SECTION 10 OF THE ACT OF MARCH 7, 1942, 56 STAT. 145, AND IT WAS FURTHER AMENDED AND RESTATED IN THE ACT OF MARCH 29, 1944, 58 STAT. 129, WHICH, IN EFFECT, WAS AMENDED BY SECTION 6 OF THE ACT OF JULY 1, 1944, 58 STAT. 681 (AMENDING THE SAID SECTION 10 OF THE ACT OF MARCH 7, 1942), SO AS TO AUTHORIZE "THE HEAD OF THE DEPARTMENT CONCERNED" OR HIS DESIGNATED SUBORDINATE TO MAKE FINAL AND CONCLUSIVE DETERMINATIONS OF THE FACT OF DEPENDENCY "FOR THE PURPOSE OF PAYMENT OF ALL 6 MONTHS' DEATH GRATUITIES AS AUTHORIZED BY LAW.' THUS, IT WILL BE SEEN THAT SINCE 1908 -- WHEN STATUTORY AUTHORITY FOR PAYMENTS OF 6 MONTHS' DEATH GRATUITY HAD ITS INCEPTION AND WHEN THE DECISION IN 15 COMP. DEC. 39 WAS RENDERED--- THE CONGRESS HAS PASSED LEGISLATION DIRECTLY RELATING TO 6 MONTHS' DEATH GRATUITY FOR THE NAVY AND MARINE CORPS ON AT LEAST 11 SEPARATE OCCASIONS, AND WHILE GRATUITY PAYMENTS WERE SUSPENDED DURING THE PERIOD OCTOBER 6, 1917, TO JUNE 4, 1920, WHEN OTHER BENEFITS WERE SUBSTITUTED, THERE HAS BEEN A CONSISTENT LEGISLATIVE TENDENCY TO LIBERALIZE THE PROVISIONS FOR PAYMENT OF THE GRATUITY RATHER THAN TO RESTRICT OR NARROW THEM. IN THE 38 YEARS SINCE THE ASSISTANT COMPTROLLER OF THE TREASURY RENDERED HIS DECISION IN THE CASE OF THE MIDSHIPMAN (15 COMP. DEC. 39), THE CONGRESS HAS SHOWN NO DISPOSITION TO NEGATIVE THAT DECISION, ALTHOUGH NUMEROUS OPPORTUNITIES TO DO SO HAVE BEEN PRESENTED IN CONNECTION WITH PENDING LEGISLATION ON THE SUBJECT OF 6 MONTHS' DEATH GRATUITIES.

IT IS WELL ESTABLISHED THAT IN THE INTERPRETATION OF RE-ENACTED STATUTES THE COURTS WILL FOLLOW THE CONSTRUCTION THAT THEY RECEIVED WHEN PREVIOUSLY IN FORCE; THAT THE LEGISLATURE WILL BE PRESUMED TO KNOW THE EFFECT WHICH SUCH STATUTES ORIGINALLY HAD, AND BY RE-ENACTMENT TO INTEND THAT THEY SHOULD AGAIN HAVE THE SAME EFFECT; THAT A JUDICIAL CONSTRUCTION OF A STATUTE OF LONG STANDING HAS FORCE AS A PRECEDENT FROM THE PRESUMPTION THAT THE LEGISLATURE IS AWARE OF IT AND THAT ITS SILENCE IS A TACIT ADMISSION THAT SUCH CONSTRUCTION IS CORRECT; AND THAT A DELIBERATE DECISION ON A POINT OF LAW GIVEN IN A CASE BECOMES AUTHORITY IN OTHER LIKE CASES AND SHOULD BE FOLLOWED UNLESS REVERSED BY A SUPERIOR COURT OR CHANGED BY THE LEGISLATURE ( SUTHERLAND ON STATUTORY CONSTRUCTION).

THE HISTORY AND CONTENTS OF LEGISLATION AUTHORIZING PAYMENTS OF THE 6 MONTHS' DEATH GRATUITY IN CASES OF DEATH OF ARMY PERSONNEL ARE SIMILAR, IN EVERY RESPECT THAT MAY BE PERTINENT TO THIS CASE, TO THOSE OF THE NAVY AND MARINE CORPS LEGISLATION REVIEWED ABOVE. THE STATUS OF CADETS WITH RESPECT TO THE ARMY IS NOT MATERIALLY DIFFERENT FROM THE STATUS OF MIDSHIPMEN WITH RESPECT TO THE NAVY.

FOR SUCH REASONS, I BELIEVE THE CONCLUSION IS REQUIRED THAT CADETS AT THE MILITARY ACADEMY, LIKE MIDSHIPMEN AT THE NAVAL ACADEMY, PROPERLY ARE TO BE REGARDED AS OFFICERS ON THE ACTIVE LIST WITHIN THE MEANING OF THE STATUTORY PROVISIONS FOR PAYMENTS OF THE SIX MONTHS' DEATH GRATUITY, NOTWITHSTANDING THE PRIOR ADMINISTRATIVE VIEWS AND PRACTICE OF THE WAR DEPARTMENT TO THE CONTRARY. ACCORDINGLY, THE VOUCHER SUBMITTED WITH YOUR LETTER IS RETURNED HEREWITH AND YOU ARE AUTHORIZED TO MAKE PAYMENT THEREON, IF OTHERWISE CORRECT. SEE 22 COMP. GEN. 85.